Government

OIA review back on the table

Critics of government secrecy are set to get one of their prayers answered, with news a review of the Official Information Act may take place. Sam Sachdeva reports on the Government’s plans for “targeted engagement”, and its decision to proactively release more documents.

“My priority is that this will be the most open, most transparent Government that New Zealand has ever had.”

Former Minister Clare Curran may regret her bold pledge last November, given it has been used by critics as a cudgel over both her own failure to declare meetings and the Government’s at times haphazard approach to transparency.

Advocates for open government were dealt a blow in May, when Justice Minister Andrew Little said a review of the Official Information Act was “not presently under consideration” despite pre-election suggestions from Curran that change was needed.

However, it appears Little and the Cabinet have had a change of heart.

'Targeted engagement' with OIA users

The surprise news came in a release of documents accompanying the Government’s decision to proactively release its Cabinet papers within 30 business days.

The documents revealed the existence of a Cabinet business committee paper produced last month which noted Little “intends to carry out targeted engagement to inform a decision on whether to progress a formal review of the OIA”.

Speaking to Newsroom, Little confirmed he was considering whether a full review of the OIA legislation was needed, or whether improvements could be made through non-legislative changes to departmental guidelines and policies.

“It wasn’t top of the priority list at the beginning of the year, but as we get to now embarking on a programme of proactive release then these things have come into sharper relief.”

“They [frequent OIA users] will have seen the worst and the best of the way it’s being managed or at least the responsibilities that ministers and public officials have and how they’re being carried out.”

Little said the “targeted engagement”, short of a full consultation process for now, would consist of discussions with regular and frequent users of the OIA (such as news media and lobby groups) about what was and wasn’t working for them.

“They will have seen the worst and the best of the way it’s being managed or at least the responsibilities that ministers and public officials have and how they’re being carried out...we kind of know where to go to get the best insights.”

However, not every change could be made with the goal of improving access to information.

Andrew Little says legal indemnity is an issue when it comes to proactive information releases. Photo: Lynn Grieveson.

Little said one of the problems with proactive releases of information was that they were not afforded the same legal indemnity that they received under the OIA.

State Services Minister Chris Hipkins, who took on Curran’s open government responsibilities following her resignation, told Newsroom proactive releases needed to be protected to avoid creating perverse incentives to hold back information unless formally requested.

“Otherwise you’re sending the wrong signal - you’re actually creating more protection for information that’s being released upon request, when actually proactive release is something we want to encourage.”

Another issue a review may address is the drastic changes in technology and communication since the OIA was passed in 1982 - something that has come to the fore in the Curran affair, with Prime Minister Jacinda Ardern speaking of official information encompassing “LinkedIn, Facebook, WhatsApp, [and] text message”.

Hipkins said the MPs and officials who drafted the OIA would not have anticipated the rise in volume of information - something which needed to be considered in any changes.

“When you write a letter to a minister, you’re creating a formal document trail and it's official information; on the other hand, if someone sends me a message via private messaging on Twitter, are they even aware that by doing so technically it becomes part of the public record?”

Chris Hipkins says a government review of the OIA could look at "definitional issues" related to the spread of new forms of communication. Photo: Lynn Grieveson.

Those sorts of “definitional issues”, as Hipkins referred to them, would suggest a review could in fact lead to a tightening of the current law - a perspective he and Little were quick to downplay.

“This is not about government trying to restrict the flow of information, but actually we do have to think about the fact the OIA was designed for a different era, and we now have to make sure it’s fit for purpose in the current age,” Hipkins said.

He likened governments’ approaches on official information to an “evolutionary path”: from a pre-OIA assumption that everything should be kept secret unless there was good reason to release it, to a law requiring the release of information unless there was good reason to withhold it, and now to “a presumption that information will be released unless there’s good information to withhold it”.

"Capturing all that information as well during the proactive release process [for a centralised website] would probably add a significant amount of extra administrative burden and also delay, which is something we want to avoid.”

Not necessarily part of an OIA review, but something that would be welcomed by critics, was a suggestion from officials that a centralised website be created to host all proactive releases.

Hipkins said it was possible proactively released Cabinet papers could all be stored in one place, but suggested it would be too difficult to require all agencies’ documents to be centralised on one website.

“If that was to be the case, capturing all that information as well during the proactive release process would probably add a significant amount of extra administrative burden and also delay, which is something we want to avoid.”

With Curran’s resignation and Hipkins’ looming parental leave, swift progress is unlikely: Little said he would report back to Cabinet with any decision by June next year.

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